Hooks v. State , 261 S.W. 1053 ( 1923 )

LATTIMORE, J.

Appellant was convicted in the criminal district court of Bowie county of the offense of attempt to commit burglary, and his punishment fixed at two years in the penitentiary.

The store of a Mr. White in the little town of Leary in Bowie county was burglarized. Por some reason Mr. White and his son had occasion on the night of .this alleged offense to be watching the store. We do not conceive it to be a matter immaterial for Mr. White and his son to be permitted to testify that they were watching the store on the night in question and give their reason for so doing. Appellant had been seen in the little town late that afternoon driving a bald-faced mule, hitched to a buggy. He had a package of candy in the buggy. On the night in question, according to the testimony, appellant appeared at the .store door and pushed against it with his shoulder. He was positively identified by Mr. White, and also by the son of Mr. White on said occasion. Appellant complains that Mr. White was permitted to testify what it “looked like” appellant was doing when he pushed against the store door. We do not deem this of any material injury, if it was objectionable at all. However positively a witness might speak of or discuss an occurrence which he viewed with his physical eyes, he still has to tell how it looked to him, and we do not think that the fact that he used this expression in any wise militated against the reception of his testimony. Sir. White shot at appellant as he was leaving the vicinity of the store door, and a moment or two later his son also shot at him as he ran away. An hour or two later appellant was found in the home of a relative about a mile from the store. He was arrested by an officer at the time. Complaint is made of the fact that, after he was arrested and examined, the officer found in one side of his stomach a fresh shot wound, a place where a shot seemed to have entered the skin and gone a little distance and lodged. There was blood at the place, and some blood on appellant’s undergarment where it came over the place. This was objected to upon the ground that appellant was under arrest at the time. No statement of appellant was offered in evidence, and we know of no reason why testimony of his physical condition, even though ascertained after he was arrested, would not be admissible.

Some of the bills of exception of appellant relate to leading questions, but the answers to none of said questions appear to he of any materially harmful character or to justify a reversal. Mr. Branch cites many authorities in article 157 of his Annotated P. O. on this subject.

Complaint of the fact that in defining “breaking,” as applied in the charge in the instant case, the learned trial judge told the jury that the slightest force is sufficient to constitute breaking, such as raising the latch of a door and opening it; pushing'at a door that is closed with intent to open it and enter by force. As applicable to a charge of an attempt to commit burglary, we think the language used was appropriate.

Another complaint of tHe charge is that the court instructed the jury that, appellant being charged with an attempted burglarious entry by force, with intent to commit the crime of theft, before they would be warranted in finding him guilty they must be satisfied beyond a reasonable doubt that the attempted entry was so made by force directly applied to the building, and with the intent to commit the specific crime of theft. We do not think this open to the objection that it was on the weight of the testimony.

The complaint of the failure of the court to submit the law of circumstantial évidence is without merit, in view of the fact that Mr. White and his son both positively identified appellant, and the former testified that he saw him go to the rear door of the store and push against it in an apparent effort to open it. This would seem to preclude the necessity for the submission of the law of circumstantial evidence.

Finding no error in the record, and believing that same reflects a fair and impartial trial accorded to appellant and sufficient testimony to support the judgment, an affirmance is ordered.